I was speaking at a conference for the Solicitors Group in Glasgow a week past on Monday on Latest Unfair Dismissal Developments. I thought that it might be of interest to set out the headline issues over the past 12 months or so in this blog.
So what’s been happening in the world of unfair dismissal?
Starting off with some facts & figures:-
- Unfair dismissal Employment Tribunal claims fell from 47,900 to 46,300 (from 1 April 2011 to 31 March 2012).
- The maximum compensatory award for unfair dismissal as of 1 February 2012 is £72,300 (albeit there are certain exceptions to this where the cap does not apply).
- Median award was £4,560 for the period 1 April 2011 to 31 March 2012.
- As of 6 April 2012 any employees who commenced employment on or after 6 April 2012 require 2 years’ continuity of service to raise an unfair dismissal claim (albeit, again, there are some exceptions to this).
- As of 6 April 2012 employment judges now sit alone to hear unfair dismissal claims unless the judge directs otherwise (previously there was always a panel of 3 including the employment judge).
- The Government are proposing various changes which will impact on unfair dismissal law:-
- Fees to be paid by claimants for raising an Employment Tribunal claim. For unfair dismissal claims this will be £250 to lodge a claim and a hearing fee of £950.
- Mandatory ACAS conciliation prior to a claimant being able to raise an unfair dismissal claim.
- Compromise Agreements to be renamed Settlement Agreements.
- Settlement Agreement offer discussions to be inadmissible in unfair dismissal claims.
- Discretionary financial penalties for employers who lose an Employment Tribunal claim where there are aggravating features – 50% of any award made (minimum of £100, maximum of £5000).
- To raise an unfair dismissal claim based on whistleblowing the protected disclosure must be made in the public interest.
- Maximum Compensatory Award limited of £72,300 to be reviewed with the proposal being that the maximum award will be a figure of between £26,000 and £78,000 OR 12 months’ salary or whichever is the lower. Cap will potentially be variable depending on the size of the employer.
- Major review of Employment Tribunal rules.
- Introduction of Owner Employee contracts with employees waiving their unfair dismissal rights in exchange for shares of a value between £2000 and £50000.
- Some interesting unfair dismissal case law in the past year or so including:-
- Horwood v Lincolnshire CC – effective date of termination where an employee resigned was the date that the resignation letter was opened and date stamped at her employer’s office.
- Leach v Office of Communications – a warning from the Court of Appeal that breakdown of trust is not a “mantra” to be used by employers when they are faced with difficulty in establishing a more conventional conduct reason for dismissal.
- Mattu v University Hospital of Coventry – Article 6 of European Convention on Human Rights (right to a fair trial) was not engaged at internal disciplinary hearing level on the basis that no rights were being determined.
- G v Governors of X School – employee did not have right to legal representation at internal disciplinary hearing.
- Christou v Haringey LBC – this related to the well known Baby P case and involved 2 employees being dismissed by a new management despite having already been issued with a written warning for the same offence on the basis that the new management team took a different view of the seriousness of their failings in respect of Baby P.
- Teggart v Teletech UK Limited – dismissal of employee for making vulgar comments on Facebook regarding a fellow employee. Article 8 of European Convention on Human Rights (right to privacy) was not engaged as an employee cannot have an expectation of privacy in respect of comments made on Facebook.
- Crisp v Apple Retail (UK) Limited – dismissal of employee for posting derogatory comments on Facebook regarding Apple. Again, employees cannot have reasonable expectation of privacy in respect of Facebook postings having regard to the fact that they have no control over how such comments may be passed on.
- Mitchells of Lancaster (Brewers) Ltd v Tattersall – selection of employee for redundancy on the basis that it was not a role that generated revenue was not, in itself, unfair.
- Nicholls v Rockwell Automation Ltd – Employment Tribunal should not embark on a “detailed critique” of the individual scores in an redundancy exercise where there is a fair system of selection without overt signs of unfairness.
- Samsung Electronics (UK) Ltd v Monte-D’Cruz – when an employee who is at risk of redundancy is being considered for suitable alternative employment the employer has considerable flexibility (which may extend to using subjective criteria) when assessing that employee’s suitability for the role.
- Halpin v Sandpiper Books Ltd, Capita Hartshead Ltd v Byard, Wrexham Golf Club Co Ltd v Ingham – 3 separate cases which involved a pool of only 1 employee (I will blog separately on this).
- Assamoi v Spirit Pub Company (Services) Ltd – a constructive dismissal claim where the EAT agreed with the ET that there was no breach of trust and confidence when an employer vindicated an employee whose manager had made spurious allegations against the employee. The manager's conduct was not in itself sufficient to amount to a material breach and the employer's subsequent actions prevented the situation escalating into such a breach.
- Edwards v Chesterfield Royal Hospital NHS Foundation Trust – not an unfair dismissal case but relevant to disciplinary issues. This case involved an unsuccessful £3.8 million claim by a dismissed employee for breach of contract. The Supreme Court held that a breach of the express contractual terms of a disciplinary policy did not give rise to a claim for damages for loss of reputation flowing from the breach.
- Duncombe v Secretary of State for Children, Schools & Families and Ravat v Halliburton Manufacturing & Services Ltd – 2 separate cases considering the rights of employees working abroad to raise unfair dismissal claims in the UK.
So a lot going on and, in particular, it will be interesting to see where we end up in respect of the Government's proposals which I have outlined above.